Congress, Administration Should Create AUMF Specific to ISIL Threat

Washington, D.C.— In response to remarks today by General Counsel for the Department of Defense Stephen Preston, Human Rights First urged the administration to work with Congress to sunset the 2001 Authorization for Use of Military Force (AUMF) and adopt a narrowly-tailored AUMF against the Islamic State of Iraq and the Levant. Preston spoke today at the American Society of International Law, arguing that the president has authority under the 2001 AUMF to target ISIL, and that the armed conflict against Al Qaeda, the Taliban, and associated forces continues.

“National security and legal experts from both sides of the aisle agree that the 2001 AUMF has been stretched far beyond its original purpose, which was to authorize force against those responsible for the 9/11 attacks,” said Human Rights First’s Tad Stahnke. “Preston’s argument that force is already authorized against ISIL in the 2001 AUMF is unlikely to change these experts’ views. Congress and the administration need to work together to make clear who the United States is at war with by establishing a specific force authorization for ISIL and committing now to revisit the scope and necessity of the 2001 AUMF over the next several years. We are pleased that the administration remains committed to adherence to international law and to refining and repealing the 2001 AUMF.”

As Congress reviews and considers the administration’s proposed AUMF, it is crucial that Congress correct the shortfalls of the AUMFs left over from the last decade. Human Rights First notes that establishing a future date for expiration of the 2001 AUMF would mandate a review by Congress and the administration, requiring the two branches of government to debate and agree on the appropriate scope of war authorities to fight al Qaeda and its so-called “associated forces.” While the proposed AUMF does include a three-year sunset and a repeal of the 2002 AUMF, without a sunset of the 2001 AUMF those two provisions may prove virtually meaningless.

In late 2014, the Senate Foreign Relations Committee adopted an AUMF against ISIL that included provisions to sunset the 2001 AUMF and limit the scope of the operation against ISIL.

Human Rights First notes that in addition to including a sunset of the 2001 AUMF, any authorization for force against ISIL should:

• Define the specific enemy and the length of time that force is authorized;
• Specify mission objectives;
• Ensure greater transparency and congressional oversight through regular reporting by the administration; and
• Comply with international law.

Human Rights First’s recommendations for an ISIL AUMF are in line with a statement of principles released by a nonpartisan group of top national security lawyers, designed to guide Congress as it considers a force authorization against ISIL. The signatories of that statement include: Rosa Brooks, Professor of Law, Georgetown University Law Center; Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School; Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law; Walter Dellinger, Partner, O’Melveny & Myers LLP; Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, New York University School of Law; Harold Hongju Koh, Sterling Professor of International Law, Yale Law School; Marty Lederman, Associate Professor of Law, Georgetown University Law Center; and, Stephen I. Vladeck, Professor of Law, American University Washington College of Law. Several members of this group recently released a statement on the “Six Missing Elements” in the President’s ISIL AUMF proposal.

For a more detailed set of recommendations regarding congressional authorization in the fight against ISIL, see Human Rights First’s fact sheets, “Myth v. Fact: Sunsets in AUMFs,” “President Obama’s Proposed ISIL AUMF,” “ISIL AUMF: Including a 2001 AUMF Sunset,” “Gaining Global Legitimacy and Promoting the Rule of Law: Necessary Inclusions for an AUMF to Combat ISIL,” and the recent letter to President Obama on an ISIL AUMF, from Human Rights First President and CEO Elisa Massimino. To speak with Stahnke contact Corinne Duffy at [email protected] or 202-370-3319.